The British government (along with the Bush administration) was quick to denounce the Burnham study. Blair's office specifically disputed the figures, and British foreign officer minister Lord Treisman attacked its methodology.

Well, it appears that these statements were contrary to the advice Her Majesty's Government was getting from its science advisors. Quoth the BBC:

But a memo by the [Ministry of Defence]'s Chief Scientific Adviser, Sir Roy Anderson, on 13 October, states: "The study design is robust and employs methods that are regarded as close to "best practice" in this area, given the difficulties of data collection and verification in the present circumstances in Iraq."

The new line from the British government is quite a climbdown:

"The methodology has been used in other conflict situations, notably the Democratic republic of Congo.

"However, the Lancet figures are much higher than statistics from other sources, which only goes to show how estimates can vary enormously according to the method of collection.

"There is considerable debate amongst the scientific community over the accuracy of the figures."

Of course, anyone could say that much just from reading the Abstract of the Burnham study. The confidence interval ranged from 426,369 to 793,663. Even if the methodology were perfect, all that could be said is that it is highly likely (95%) that the true figure is between those two numbers.

The other "methods of collection" are really reported deaths. (Like that done by Iraqi Body Count.) That can only give a floor: no one thinks it provides a more accurate measure of actual deaths, and the British government certainly wouldn't in Darfur.

Friday, March 30, 2007

It's downright hilarious the way this movie punishes every smart character. Every time someone wants to argue with the war party in this movie, he's evil. Everybody who talks in a normal tone of voice is evil. Snyder shows two scenes where the Spartans murder Persian envoys arriving under a flag of truce. And both times, you're supposed to cheer.

Since when do Americans cheer when truce parties are murdered? Well, that's pretty easy to answer, actually: since Iraq.

Wednesday, March 28, 2007

Sweet. Thanks to the kindness of Scott Lemieux, my contentless post crowing about the Quebec election result has sparked an interestingdebate in theleft American blogosphere.* As an ex-pat, Scott knows the shade of pleased crimson we Canucks turn when anyone in the Great Republic notices the happenings up here.

Of course, this moment was technologically determined. As Michael Kinsley noted, "Canada: Our Troubled Neighbor [sic.] to the North" is the article more Americans want to write than read. Which, when you think about it, is a pretty good definition of what the blogopshere is all about.

To boil it down, their progressive friends find it odd that Scott and Jacob Levy would prefer the "right-wing" ADQ to the PQ, a member of the Socialist International led by an openly gay man. The suspicion that Anglo-Canadian particularist bias might have infected their apparently universalist souls might have occurred to some of the comrades. Flatteringly, Scott hoped that I would add something more congitive to the discussion. So here goes.

• The English Canadian editorials and mainline pundits (exemplefied by Jeffrey Simpson, a mind so pedestrian he makes David Broder look like Michael Kinsley) will tell you not to overestimate the significance of all this, that separatism is as potent as ever, that there is less here than meets the eye. Ignore them.

The PQ is in a terrible position. Just a few days ago, a well-placed nationalist intellectual told me confidently that the Parti would emerge with a small plurality. Mario would fade at the end, as he always has. The Liberals' vote is inefficiently distributed. Now, the PQ has come third in both the popular vote and in its seat total. It will inevitably face a battle over leadership. And with this come difficult, inevitably polarizing ideological decisions. Clearly, the vast majority of Quebecois do not want another referendum about separation -- as long as the two-party system meant that unpopularity of the PLQ necessarily benefitted them, they could afford to ignore this. But smaller parties are usually more ideological parties, and there is no one with the authority of Levesque or Bouchard to tell the party faithful to postpone their dream.

Charest is in much better shape, at least in the short term. The ADQ has always just been Dumont. He needs time to weed out his nutbars, figure out if he has anyone who is cabinet material, etc. He's not going to be in a rush. And he isn't in a position to deny Charest his new centre piece -- using the new federal money for a big tax cut. Harper's shown that you can play a minority with strength if your opponents don't want an election. Charest isn't as clever, but the way seems clear.

The English-speaking media play it pessimistic for a couple of reasons. In some cases -- such as the Globe -- it is because they were burned when they tried to sell Mulroney's strategy of burying separatism by accommodating it. But mostly because English Canadians are really culturally Scottish, and have a pagan Calvinistic sense that optimism brings the wrath of the gods.

• Everyone in the American progressive debate seems to agree that ethnic nationalism is a bad thing. Scott ascribes this sin (reasonably enough) to the PQ, and gives this as a reason for his joy. The bad news crowd point out that the ADQ contains many an ethnic nationalist.

Taking a broader view, the Left has never known exactly what to do with ethnic nationalism in general and Quebec nationalism in particular. Two broad attitudes stand out. The first is Rosa Luxemburg's view that loyalties to any contingently defined subset of humanity is precisely the poison the left exists to fight. The second -- which can be traced to Engels' writing on the 1848 revolutions -- distinguishes the nationalism of progressive peoples (good) from that of reactionary peoples (bad). Embarrasingly, Engels thought Germanic and Magyar peoples were progressive and Slavs were reactionary, but the particular valences don't matter. The key point is that progressive nationalism contains a revolutionary kernel -- its victory will ultimately help destroy all particularisms.

The trouble is that real peoples turn out not to live according to some teleological historical script. When they fight, they fight for unprogressive things like blood and soil. So they go from being progressive to reactionary to progressive depending on the coalitional needs of the moment. The Poles were the most progressive of all nationalities to nineteenth century leftists, but became black reaction personified when the Bolsheviks battled Pilsudski. The Irish are always progressive when battling the British, but somehow managed to have the most socially conservative democracy in history for sixty years. In 1948, the world's most progressive people today, the Palestinians, were -- all right-thinking people agreed -- reactionary allies of fascism. It is often difficult to keep straight which peoples are progressive and which reactionary. The reactionary nature of the Scotch Irish of the American South and Ulster Protestants would seem to be a fixture. But we have recently been told to feel bad for white Rhodesians, and who knows what the election of Jim Webb as a Democratic Senator might portend for his redneck co-ethnics?

It is perfectly true that Quebec nationalism is an ethnic nationalism, although it is the sort of truth everyone knows and no one says. Maître chez nous. Je me souviens. The first person pronoun does not refer to everyone who happens to reside in Quebec. French Canadians have no fundamental objection to people of other stock assimilating and intermarrying -- they have been happily led by three men named Johnson (from one family, but three political parties -- a fact you should bear in mind later.) Ethnic relations in Quebec -- unlike anywhere else in North America -- have long resembled the situation described by Amy Chua of the "market dominant minority." Anglophones (Scots and Jews) were basically analogous to the Chinese or the Maronites, while French Catholics were analagous to the Malays or the Druze. (Fill in your analogy.)

The Quebecois left (with the exception of the odd Bordigist** or two) has always been pretty sure that Quebec nationalism is of the progressive sort. WASP and Jewish socialists have never been as certain. (As with so many things, there were enthusiasts in the sixties, but little enthusiasm remains now that those who experienced it are in their sixties.) Not having access to history's telos, I am unable to resolve the controversy. I acknowledge Levy's point about Quebecois hypocrisy to the national aspirations of the Cree, although they in turn may prove disappointing.

I would, however, reject Rosa Luxemburg's solution. It turns out that it is really Capital that has no country. Ethnic loyalties are a universal part of human nature, and it is in fact one of the objections to the society of contract that it suppresses them. Obviously, the last century has many examples of dangerous and extreme forms of ethnic nationalism, but the record of universalism is not any better. To take parochial (and mild) examples, it was the cosmopolitan Trudeau, not the nationalist Levesque, who declared martial law after two kidnappings and convinced the Supreme Court that double digit inflation represented an "emergency" sufficient to suspend the ordinary constitution. No important Canadian politician, before or since, has been so doctrinaire or so sympathetic to totalitarianism. Perhaps what we want is moderation both in our particularists and in our universalists.

The trouble with the PQ is not that they have been ethnic nationalists. There have always been parties and politicians representing the French interest in Canada, and no doubt will always be as long as Canada exists as a binational country. And those politicians were right about important things like World War I. Part of the trouble is precisely that the PQ have been shamefaced ethnic nationalists. The post-sixties territorial definition of "Quebecois" -- supposedly a great improvement -- clearly excludes a million French Canadians living outside Quebec without really including the million non-francophones living within its borders. It is (provincial) state-centric.

The ADQ undoubtedly has a few nuts. The last representatives of a conservative tradition in Quebec, Caouette's creédistes, were completely loopy. But, sensitive as the relationship between the survivance and contemporary Canadian immigration patterns may be, issues of demographic change should be addressed by mainstream parties.

• Even though I disagree with him on the merits of ethnic nationalism, Scott is exactly right that the "left-wing" domestic politics of the PQ has a different meaning in the Quebec context than they would in contemporary America.

The Quiet Revolution left an interlocking set of nationalist elites in business, the labour movement, the intelligentsia, the PQ, the quasi-state (the Caisse and Quebec Hydro) and the bureaucracy. It's past time to open this up. Bringing in more market forces and lowering the tax burden is not, in the Quebec context, about decimating the welfare state. Maybe Dumont would someday like to get to that point, but Quebec is a long way from that.

Update: Professor Levy has a very generous response to this post here. He's clearly as far from a simple-minded "Luxemburgian" as it is possible to be. He was writing interesting things about the relationship between federalism, liberalism and multiculturalism before he got to Canada, things I thought had special relevance to Canada when I first encountered them. It would be fascinating to see how living in Montreal has affected his thinking.

As BKN notes, both of the Supreme Court of Canada cases released last week involved that dog's breakfast of administrative law, the "standard of review."

Most law revolves around conflicting imperatives. In administrative law, there is the principle that the ordinary courts should make sure that every body with legal power over the subject keeps within those powers (its "jurisdiction"). The New Dealers left us the competing principle that the expertise of specialized boards and tribunals should be respected (given "deference"). These two ideas -- each of which sounds reasonable -- are sort of at war with each other.

Canadian law tries to resolve the dilemma by deciding on one of at least three "standards of review" that should be applied to the decision of the tribunal by the reviewing court. Some things the inferior tribunal must be right about. Others it can be wrong, as long as it is reasonable. And still others, it can be unreasonable about as long as it is not "patently unreasonable."

This way of resolving the genuine dilemma is patently unreasonable itself. But what is even worse is how you decide which of the standards of review gets to be applied. I'm not going to get into it, but pretty much any administrative lawyer will agree that the whole thing is a mess.

That's bad, but not all that unusual. There are many messes in law. But what is really bad is that the Court calls its multi-factor approach to determining standard of review the "pragmatic and functional approach". And lawyers -- who are all sycophantic courtiers when it comes to legal argument -- follow along, even though they would to a soul agree that "scholastic and dysfunctional" fits better.

Undeserved self-praise in labelling is not unique to the Red Nine. Management consultants, commercial advertisers and politicians are more ubiquitous. Still, the judges are alone in that we expect them to delineate the limits of their own power. In Schmittian terms, they decide on the exception. So it is particularly obnoxious coming from them.

Monday, March 26, 2007

Everybody knows the dice are loaded. Everybody rolls with their fingers crossed. Most of us sooner of later picked up that the deal is rotten and the fight was fixed. But even those naive souls who haven't figured any of these things out are aware that it's hard to be fired from a unionized public sector job, particularly in Quebec.

But still, the circumstances of Danny Belleau's reinstatement are hard to believe. Belleau was a cop in a small city in Quebec. Over the holiday season of 2000-2001, he got into a fight with his common law partner, resulting in convictions for threatening to cause death or bodily harm, assault, three counts of improper storing of a firearm and breach of his release conditions when he showed up at her parents place after undertaking not to contact her. In each case, Bellleau pleaded guilty to the criminal charges. He was dismissed from the police force, but an arbitrator reinstated him. The "special circumstances" were that he was in a "morbid mental state" as a result of family problems. Belleau succeeded in having the arbitration award upheld in the Quebec Court of Appeal.

One doesn't need to be a follower of Dr. Thomas Szasz to see that any violent person can get a medical opinion that they were in a "morbid mental state", and even the morbid ought to lock up their guns. Maybe especially. So I sympathize with the Supreme Court of Canada's reversal of the award. But I have some trouble with the reasoning.

As in every administrative law case, the first part of the decision consists of mumbo-jumbo about "standard of review", which must be decided based on the "pragmatic and functional approach." Lay readers are advised to skip this. Bastarache has decided that in deciding whether there is a conflict between statutes, arbitrators are required to be right, but when deciding on how to apply these statutes, they are allowed to be wrong, if they are reasonable, but not if they are patently unreasonable. This is just as stupid as it sounds. Still, there's not much point complaining about the "pragmatic and functional" approach, and it does add to the billable hours.

But on the other major legal issue, on the compatibility of statutory provisions, I think Bastarache has muddied things up once again, and things are not yet so far gone that complaining is pointless. This may have negative consequences for the federation, or just for the coherence of this area of law, depending on how seriously it is taken. Canadian law -- to the Ectomorph's dismay -- has always had a wide view of what laws are compatibile with each other. Laws are only incompatible if it is literally impossible to comply with both. If Law 1 says that A is forbidden and Law 2 says it is obligatory, then there is an incompatibility. But this almost never happens. In the more common case where Law 1 says that A is forbidden, and Law 2 says it is permissible (but not specifically privileged), then the two laws are considered compatible: A is just forbidden. For example, a local prohibtion on the use of a pesticide for cosmetic purposes has been found to be compatible with a regulatory pass for that pesticide by the province. And the same thing can be an offence under any number of laws without creating a conflict.

There were two laws that might have applied to Danny Belleau's employment. One said that criminal conviction for criminal offences (other than summary conviction offences) will lead to dismissal as a police officer, unless there are special circumstances. The other said that a criminal conviction for an offence with a maximum penalty of more than 1 year (which includes almost all non-summary offences) disqualifies a person from employment as a municipal official for 5 years. Belleau, as a muncipal police officer, is in the intersection of the groups to which the two statutes apply. So is his dismissal automatic, or can he show special circumstances? Bastarache decides that the two laws are incompatible because the muncipal official one "effectively" and "pragmatically" denies the right to show special circumstances. Since the cop law is later and more specific, it wins out.

I think the concurring judges have the better of the argument here. The cop law is not trying to create a special right for cops; it is just another type of (almost) automatic dismissal provision. It is possible to be disqualified from municipal employment without being fired as a cop. So there is no incompatibility on the traditional Canadian approach.

These fine doctrinal points matter to federalism. Under the doctrine of preemption, American courts take a wider view of what amounts to incompatibility between two laws. This leads to both floor and ceiling preemption: if there is federal law about, the states are unable to provide for either lower or higher standards. Overlapping jurisdiction means federal authority. In contrast, in Canada, each level of government can fairly easily provide new requirements. Federal paramountcy rarely matters very much in Canada, unlike in the US and Australia.

The good part of this is that it preserves federalism, even as other doctrinal developments make concurrent jurisdiction more and more extensive. The bad part is that it is bad for freedom if "X is permissible, but not obligatory" is the rule that always gives way. As a provincial autonomy sort, I would prefer a real policing of the boundaries of jurisdiction, but since that's unrealistic, I would still want to resist any expansion of incompatibility.

The simpler point -- and the real reason I'm not going to give P&S's coveted "Thumbs Up" to this case -- is that Bastarache didn't even need to go there. The whole court agreed that no special circumstances existed. The wisdom to shut up about tricky doctrinal issues that don't need to be decided -- particularly ones that might upset the balance of the federation -- is an important judicial quality, and was lacking here.

Wednesday, March 21, 2007

I didn't say the Bush administration had advanced the most transparently immoral argument for war since Alaric. I used that characterization for the Canadian business community that says we should have participated so that we don't face protectionist measures from the United States. That argument is transparently immoral since it uses economic interest as a justification for lethal force. The Bush administration (rightly) does not argue that the war against Iraq will bring the United States any economic benefit.

No doubt there will be *some* good consequences of the war. But it seems strange for a libertarian [like my interlocutor] to think that's the end of the analysis. There would be some benefits of a government program giving all high school graduates free sports cars. The question is whether the costs of the war in global instability outweigh the benefits. It seems odd to me that you think governments will necessarily make things worse by regulating pesticides, but establishing democratic self-government in a (at minimum) half hostile country is a doddle.

All occupations, like all taxes, are "temporary." Just as soon as order is restored, democracy established, "terrorists" disarmed and global brotherhood established, the United States and United Kingdom will be on their way, bedecked in garlands by a grateful population.

If the Iraqi population is genuinely supportive of this adventure, then this rosy scenario could materialize. But I don't think it will. We really don't know what the Iraqi population think now. The evidence from exile communities (which would, if anything, be biased in an anti-Hussein direction) suggests that even at the beginning of the occupation, there is a range of opinion from support through indifference to hostility to the Americans among anti-regime Iraqis.

Historical experience suggests that the longer the occupation lasts, the more hostility there will be. In Somalia in 1993 and in Ulster in 1969, the population initially welcomed the occupiers: neither turned out that well. Even if there is material improvement, Iraqis have suffered a national humiliation. Arabs in neighbouring countries are in a cold fury against the United States, and it seems likely that, assuming the country opens up, this message will spread. If anything goes wrong, the occupiers will (rightly) be held responsible. Moreover, American armies are not known for their cultural sensitivity and the Bush regime prefers to smother bad news than learn from it. All in all, a recipe for increasing resentment.

This resentment could lead to an intifada. The undeniably immense technological superiority of the US military will be of little use if this occurs. Instead, the US will have to choose between crushing the rebellion and withdrawing. The obvious leaders of such an intifada are (you guessed it) Islamist fundamentalists.

The more general point is that national sovereignty is a necessary, although obviously not sufficient, condition for democratic self-government.

More broadly, this war sets a bad precedent. If we take seriously the "Bush doctrine" of pre-emption, then any country could justify invading any other. If we, more realistically, accept that the Bush doctrine is only intended for hegemons to invoke, then there is no reason to stop at Baghdad. Damascus and Tehran await. Etcetera. Either America becomes the ruler of the world or it repudiates the Bush doctrine.

But if I am wrong about all of this, I would say the same things about Celluci's intervention, and the craven response to it on the Canadian right. Even if the war and occupation turns out brilliantly, friendly countries, like Canada, are entitled to take a different view without being threatened. Loyal oppositions do not react to threats to their country by chiding the government of the day for upsetting the hegemon. The threats on Canada are what make me angry, but they are not of the greatest world-historic importance. But similar threats have been delivered to Turkey because its government followed the wishes of over 90% of its population. This *is* of world historic importance, since Turkey is a precarious Muslim democracy, with a pro-American military willing to threaten the civil government.

It seems odd to me that you don't recognize the inherently mercantilist logic behind Celluci's statement that the US values security more highly than trade, with its implicit threat that Canada will suffer trade consequences if it does not adopt the Bush administration's view of security. Canada will suffer if the United States goes down the protectionist road, but so will the United States. We will suffer more, but we will suffer proudly if our only alternative is capitulation.

Well, I haven't been very successful in getting any of you to to talk about the 2003 me, so I'll talk about me. Hey, if you don't do it for the money, you do it for the vanity.

I think I was basically right that "Iraq represents no plausible undeterrable threat to the United States or the world, and certainly not one proportional to the risks and immorality of starting a war." No WMDs were found -- contrary to my expectations of "a few canisters of nerve gas in a basement in a Baghdad suburb." The risks of occupying a Muslim country are now fairly obvious, although I would have expected an attack on the North American mainland by now.

My concern that the new regime would consist essentially of Ba'athists not immediately related to Saddam Huseein turned out to be false. I wrote something a few months later assuing that the Americans would never permit pro-Iranian Shi'ite parties to take power. Wrong on that one.

I am now more inclined to a pretty strict Westphalianism (no war to change the internal nature of other countries). I'd still say that intervention in the midst of an ongoing genocidal massacre is excusable, if not always prudent. By March 2003, Britain and the US had already created a de facto Kurdistan, and I think (and thought) that this was justifiable. Indeed, I would say that by now, the West owes the Kurds some protection.

"The old racist, colonialist line that Arabs are not ready for democracy" looks a lot better today. I don't, however, think this is because of something essential in Arab nature, but sometimes the historic situation makes majority rule and a reasonable amount of liberalism incompatible, and this is one of those times.

Tuesday, March 20, 2007

There appears to be a vogue for bloggers re-publishing what they said about Iraq in March 2003. "Pithlord" didn't exist back then, but my alter ego did participate in a Canadian current affairs Listserv. I've done a light edit of my posts to preserve pseudonymity (and remove embarrassing typos), although it wouldn't work against someone really motivated. I will write something about what I got right and wrong later, but I thought I'd let commenters have a go first, if they are so inclined.

February 20, 2003:

Iraq represents no plausible udeterrable danger to the United States or the world, and certainly not one proportional to the risks and immorality of starting a war. I agree with *** that the only plausible argument in favour of war is the removal of the gruesome Ba'athist dictatorship. It is hard to know whether the Iraqi people would really regard this as a liberation (many peoples in the past have fought hard to protect domestic tyrants against foreign "liberators"; on the other hand, the one thing we know about Iraqi public opinion is that there is no reliable way of knowing what it is).

Unlike some people on this list (the "Westphalians"), I am not in principle against the use of military force to overthrow tyrannies. It seems axiomatic to me that sovereignty, as a principle, should be for the security and self-determination of the people, rather than an excuse for inaction when the state is massacring civil society. If this is contrary to the UN Charter and Lloyd Axworthy's worldview, so much the worse for them.

However, members of the Iraqi opposition in exile are raising the alarm that US foreign policymakers plan a military government, with domestic quislings acceptable to the Gulf oil monarchies. Defectors from the Saddam regime, all of them butchers in their own right, are promised positions of influence in the new order. The promise of a secular democratic federal Iraq seems likely to be betrayed. The Left is assisting in this process, by repeating the old racist, colonialist line that Arabs are not ready for democracy (ignoring the role of the West in keeping them from having an opportunity to demonstrate otherwise). The pro-war Right seems incapable of anything other than uncritical adulation of Bush and equating skepticism about Ariel Sharon's desire for peace with anti-Semitism. But as proponents of this war, they should be the first to raise the issue of what kind of Iraq is contemplated after it is over.

March 19, 2003:

The truly outrageous aspect of the Bush administration's claim that UN Resolution 1441 authorizes its actions is that, at the time, it obtained that Resolution precisely on a promise that it would not execute the "serious consequences" without a second resolution.

Josh Marshall has the money quote from Ambassador Negreponte. This is what he said, on behalf of the US, when the Security Council approved 1441:

By betraying that promise, the Bush administration has made it clear that it means what it said in the National Security Strategy, paraphrased by Gore as the recognition of no limits on the US's right to employ military force other than the discretion of the American President.

Is it hard for Americans and their cheerleaders on the right in other English speaking countries to understand that most of the world (rightly or wrongly) considers that proposition much scarier than a few canisters of nerve gas in a basement in a Baghdad suburb? A narcissist is congenitally incapable of seeing him- or herself as others do. Only a narcissist would be surprised to find that the US's actions -- clumsy lies to the Security Council, shifting rationales for a war that has clearly become an end in itself -- would unite world opinion behind anyone, including a corrupt Gaullist, willing to stand up to it.

On the one hand, I hope that the war is swift, that the criminal military trial balloon about "shock and awe" is not followed through on, and that Iraq establishes a federal democracy in the aftermath. But if this rosy scenario does occur, will it not embolden the Bush administration to new and even more dangerous adventures?

Also on March 19, 2003:

I don't believe France said it would veto any resolution that involved the use of force, but that it would veto any resolution that *automatically* authorized force if Iraq did not comply. This is a reasonable position, if you don't trust the US to fairly determine compliance. France's position in March was consistent with the position it took last Fall. The US solemnly stated that there was no "automaticity" in 1441.

What Canada, and others, proposed was a second resolution with a deadline, after which there would be "automaticity". France's opposition was reasonable, because the Bush administration has made it abundantly clear that they will read anything, short of regime change, as non-compliance.

March 20, 2003:

Is "imperialism" a fair word to describe the Bush doctrine, or recent US policy more broadly? I agree with *** that the leftist theory of imperialism, which essentially equates it with capital investment in other countries, is economically illiterate. There is also nothing inherently imperialist about being more powerful than anyone else, or leading an ideological struggle against Leninism, or providing support to ideological allies throughout the world.

But it isn't just the usual suspects who are using the i-word.

What is remarkable is that, for the first time since the Teddy Roosevelt administration, figures with influence in American policy are talking about "empire" favourably. Formally, the administration has not gone that far. But its claims, in its most recent National Security Strategy report, are "imperialist" on any reasonable interpretation of that word.

An "imperialist" claims sovereign authority over large swathes of overseas territory. Imperialism is consistent with some limited rights of local self-government, providing that the ultimate authority is with the imperial country. Max Weber defined the state as the monopoly of armed force within a territory. Clearly, another aspect of sovereignty is the right to determine who will exercise the various functions of government.

In the National Security Strategy, Ms. Rice, on behalf of the US government, stated explicitly, that it would act to remove potential threats and unfriendly regimes, on the basis of no other authority than that of the President. In other words, the territory with respect to which the US claims the monopoly of armed force is the Earth (and, for that matter, its orbit).This doctrine is being tested in Iraq, and the main reason for the resistance of the world is not friendship for the Iraqi regime, but fear of this doctrine.

Against this doctrine, much of the world puts forward the Westphalian understanding that each state is sovereign within its own territory. The corollary of this doctrine is that war can only be justified if a state has actually invaded (or, at minimum, has a present intention to invade, combined with steps towards doing so) your own state or an allied state. The Westphalian doctrine could justify Gulf War I, on the grounds that Kuwait was an allied state to the US and the other participants. It could justify the war in Afghanistan, since there was a clear link between the Taliban regime and the September 11 attack. But it cannot justify Gulf War II (and couldn't justify the 1990s interventions in Panama, Somalia, Haiti, Bosnia or Kosovo either).

The Westphalian understanding is the basis of international law, as set out in the UN Charter, and in international custom. The only exception is where the UN Security Council has specifically authorized the use of force. This it declined to do in UN Res. 1441.

Moreover, the Bush administration (unlike Blair's UK) -- while formally asserting that it has authority for this war from the Security Council -- also says it doesn't need it. The real advocates of the war against Iraq are contemptuous of the United Nations and international law more generally.

There are objections to the Westphalian view. The first is a moral one, made most vivid by the 1994 genocide in Rwanda: if sovereignty has any moral force, it must be because it preserves the security of individuals, but if it is slaughtering them, how can we morally stand by when we have the power to prevent this, without an over reliance on the act/omission distinction?

This is a question people like *** have to address.

The other is a genuine security issue. The major threat to us in the developed world is not imminent invasion by a major state, but the proliferation of retail nuclear weapons, particularly in the hands of fanatical NGOs, like al Qaeda. Pure sovereignty allows any country to build whatever weapons it wants, as long as it does not violate its treaty commitments. I do not see this working as a system of world order as the technological capacity for mass violence becomes increasingly affordable.

U.S. imperialism may be a solution to these problems. It is difficult to deny that the regimes targeted by the US and its coalitions of the willing are much more heinous than their replacements. (I realize that on the Internet it is possible to deny anything, but I'm trying to establish why *reasonable* people would say the US is being imperialist, and it's a badthing.)

U.S. imperialism, if followed through, could also, in theory, deal with the proliferation problem: by definition, it leaves the U.S. in control of weapons of mass destruction, but, in principle, this is no different than the Hobbesian police department being the only ones with automatic weapons.

If the only choice is between Westphalian anarchy and U.S. imperialism, it is arguable that the latter promotes better the greatest happiness of the greatest number, and/or might be chosen behind the veil of ignorance. The logic is Hobbesian: better one absolute monarch who can establish order and let all the burghers trade peacefully than hundreds of ministates with nuclear weapons. The permutations of conflict rise exponentially.

Still, being honest about the downside is the first rule of policy analysis, and there are some downsides. There's the strange American habit of electing personable governors from the least civilized part of their country to supreme executive office. This is fine when they turn out to be adulterous policy wonks with Oxbridge educations, but can turn sour when they are dim, earnest and parochial jocks, with a moral worldview less complex than that of Dungeons & Dragons. More generally, there are the classic problems of vesting unlimited authority in a single individual not accountable to the vast majority of people over whom authority is exercised.

A claim by the US to sovereign authority over the entire world will not be readily accepted by the vast majority of people on the planet. That is what the diplomatic and political manoeuvres prior to this war have been about, and not about Iraq itself. The hawks need to address an obvious problem: the government of Chile (for example) fears for its survival if it supports the US in the Security Council, despite all the inducements and threats of the hegemon. Why? Is it because the people of Chile care that much about who will be the dictator of Iraq? No, it is because they don't care about the regime in Iraq, but they do fear the power of the United States. And who can blame them?

The result is that a US imperialist world order, without any structure of international law or supra-national institutions, cannot possibly be a basis for security in this century. On the other hand, no such order can be built without the support of the United States. If we look rationally at the US's legitimate security concerns, which center entirely on proliferation of mass weaponry and terrorism, it appears obvious to me that these concerns can only be met on a multilateral basis, according to which *everyone* trades some sovereignty for the collective good. This goes against neoconservative ideological prejudices (and the interests of Greater Israel fanatics). As a result, it will have to await regime change in Washington.

March 31, 2003:

Now, I'm no supporter of the late Senator Joseph McCarthy. But he had a point about one thing. There was, in the 1950s, a significant global communist movement, and it did, as a matter of ideological principle, subordinating the interests of one's own country to those of the Soviet workers state. And, while as a civil libertarian, I support the right of persons with an ideological preference for putting another country's interests first, I don't think such people should be trusted with governmental power.

And I'm no fan of Preston Manning's Reform Party. But they had a point too. There was something a bit anomalous about the Bloc Quebecois being "Her Majesty's Loyal Opposition" when they were committed to the end of the Canadian constitutional order. I disagreed with them, because the BQ committed itself to working within the structures of Canadian federalism to achieve their goal of dismantling those structures. It was therefore "loyal"in the sense most important for an opposition party.

However, after its reaction to Celluci's threat against our country, it is now evident that the "Canadian Alliance" is not a loyal opposition. Celluci threatened to put Canadians, including Alliance voters, out of work for following its own sovereign policy with respect to war in Iraq. A loyal opposition, even if it felt that Canada's interests would be best served by participating in Bush's war, would have been the first to say that this was an unacceptable interference in the internal politics of a friendly nation.

That is because a loyal opposition, while not necessarily accepting the wisdom of the policies of the government of the day, accepts that the constitutional structure vests the power to make Canadian foreign policy in the government of Canada.

The distinction is similar to the distinction between those, in the Cold War, who believed it was in Canada's interest to take a more congenial attitude towards Moscow, and those who worked to further Moscow's interests against that of Canadians. A more plainspoken age called it the difference between dissent and treason. Supporting the right of the US government to use economic pressure (presumably in violation of its treaty commitments) against Canadian working people because of the decisions of the Canadian government is on the wrong side of that line. A self-respecting nation (both France and the United States would qualify) would not tolerate a politician or a media chain who took this position.

The Canadian Right is as ideologically invested in the United States as the 1930s Communist Party of Canada was invested in Stalin's Soviet Union. The United States is a more benign society, of course, but its interests, particularly under this administration, are not our interests. The peace movement should petition the speaker to remove the title of leader of Her Majesty's Loyal opposition from Mr. Harper. It should also target those Canadian businesses who have spoken out in favour of Mr. Celluci with its own boycotts. The Canadian Right should clean its own house, and explain where its loyalties lie.

As *** has pointed out, Canada has not been alone in being on the receiving end of official chastisement from Washington for its (well advised, in my view) refusal to endorse Bush's war for regime change. Bush threatened Mexico with a "spontaneous" backlash against Americans of Mexican descent if Mexico refused to vote its way in the Security Council. We should link up with Mexico and Chile, and ask for official confirmation from the United States that it will not seek to punish, economically or in any other way, friendly countries that disagree with it about Iraq. Given that coalition forces are now stalled outside Baghdad, that it is increasingly obvious that Iraqis are not going to view the United States and Britain as "liberators" and there is a real threat of the war escalating to Syria and even Iran, we should also propose a ceasefire, and the return to a disarmament process overseen by the Security Council.

The good news (or at least speculation) is that heads appear to be about to roll in Washington. Rumsfeld and possibly Rice may become the scapegoats for the failure of the rosiest scenario to materialize.

I realize this posting is already long, but I though many might find the following Boston Globe article interesting. It blames Commonwealth rightists, including Canadians Conrad Black, Mark Steyn, Michael Ignatieff, Charles Krauthammer (who I didn't realize was Canadian) and David Frum, for trying to make "imperialism" a positive word in American foreign policy circles.

Monday, March 19, 2007

I am reading Barack Obama's first book. There is a lot in it that -- taken out of context -- could be pretty damaging in the hands of an enemy, and he won't lack for enemies capable of paying someone to read the book. But -- I'm now at Chapter 5 -- I think it would be a mistake to read it as anti-white or an embrace of simple-minded black nationalism. Obama is subtle, maybe too subtle.

Here he is on his white liberal mother became an (apparently unsuccessful) avatar of Midwestern Anglo values in fatalistic Muslim Indonesia (the typos are mine):

Honesty — Lolo [Obama’s Indonesian stepfather] should not have hidden the refrigerator in the storage room when the tax officials came, even if everyone else, including the tax officials, expected such things. Fairness — the parents of wealtheir students should not give television sets to the techers during Ramadan, and their children could take no pride in the higher marks they might have received. Straight talk […] Independent judgment — just because the other children tease the poor boy about his haircut doesn’t mean you have to do it too.

It was as if, by traveling halfway around the globe, away from the smugness and hypocrisy that familiarity had disclosed, my mother could give voice to the virtues of her midwestern past and offer them in distilled form. The problem was that she had few reinforcements; whenever she took me aside for such commentary, I would dutifully nod my assent, but she must have known that many of her ideas seemed rather impractical. Lolo had merely explained the poverty, the corruption, the constant scramble for security [in Indonesia]; he hadn’t created it. […] My mother’s confidence in needlepoint virtues depended on a faith I didn’t possess, a faith that she would refuse to describe as religious; that, in fact, her expereience told her was sacrilegious: a faith that rational, thoughtful people could shape their own destiny. In a land where fatalism remained a necessary tool for enduring hardship, where ultimate truths were kept separate from day-to-day realities, she was a lonely witness for secular humanism, a soldier for New Deal, Peace Corps, position-paper liberalism.

On Malcolm X:

Only Malcolm X’s autobiography seemed to offer something different. His repeated acts of self-creation spoke to me; the blunt poetyr of his words, his unadorned insistence on respect, promised a new and uncompromising order, martial in its discipline, forged through sheer force of will. All the other stuff, the talk of blue-eyed devils and apocalypse was incidental to that program, I decided, religious baggage that Malcolm himself seemd to have safely abandoned toward the end of his life. And yet, even as I imagined myself following Malcolm’s call, one line in the book stayed me. He spoke of a wish he’d once had, the wish that the white blood that ran through him, there by an act of violence, might somehow be expunged. I knew that, for Malcolm, that wish would never be incidental. I knew as well that traveling down the road to self-respct my own white blood would never recede into mere abstraction. I was left to wonder what else I would be severing if and when I left my mother and my grandparents at some unchartered border. (p. 86)

Saturday, March 17, 2007

Having recently spoken well of Lindsay Beyerstein, I think it is interesting to note how two of her recent posts show the tension between strong pro-choice commitments and the left's support for the traditionally marginalized and oppressed. Beyerstein is nothing if not logical, and so the dialectic plays out very quickly. But I think it has broader implications, some of which Russell Arben Fox has blogged about.

In the post I originally linked to, Beyerstein indicated her disgust with an Albert Mohler of the Southern Baptist Theological Seminary, who apparently supports the idea of screening pre-natally for same sex sexual orientation, followed by "treatment", should these things become scientifically possible. Mr. Mohler doubtless would not approve, but the most likely "treatment" will be abortion.

More immediately, inferential statistics show that sex selection through abortion is widespread. And of course, there are very few Down syndrome kids anymore.

Beyerstein was taken to task for inconsistency by libertarian Julian Sanchez. A fetus is not a person, and therefore, he claims, has no legal or moral rights. So there can be nothing legally or morally wrong with killing or modifying it, even if the parent's preference is a morally arbitrary one.

Beyerstein -- to the credit of her consistency, if not of her premises -- posted again, essentially agreeing with Sanchez. When I asked her to clarify whether she was just saying that women shoudl have the legal right to use abortion to select for sex or sexual orientation, but that it was still morally wrong, she said such abortions were morally indifferent, although they reveal a character flaw of discriminatory attitudes.

I agree that a fetus is not a person with equal legal and moral rights to the born. I think that view is fanatical -- no well-constituted person would leave a child to die to save any number of blastocysts. But the Sanchez position -- that any abortion for any reason is morally indifferent -- seems equally fanatical to me. When the left embraces such a position, especially in relation to disadvantaged and marginalized groups, it abandons its core commitments, the ones that give it a right to exist.

One problem is imposing a discrete framework of person/nonperson on what is a continuous process. Another problem is the quintessentially liberal assumption that all our duties derive out of the rights of other persons.

Perhaps we should start from the recognition that abortion is an act of violence. Not all violence is wrong. Some is necessary; some is justified; some is excusable. If we aren't strict vegetarians, we eat as a result of violence. It is violence (against people) that sustains borders internationally and law domestically. Requiring someone to give birth against her will would also be an act of violence. But it is perhaps just a little too easy to declare violence -- especially violence we are accustomed to -- necessary. And it is even easier -- but worse -- to decide we don't need to find it necessary because it isn't violence at all.

We have already passed the point where parents can -- and do -- decide their children's sex prenatally. Soon, it will be sexual orientation, and IQ, and personality profiles. A mature parent is one who realizes how little his or her "preferences" matter to what a child is going to be, who accepts the dread that comes in knowing how wide a variety of futures there are, and how little -- in the final anlaysis -- our planning can do about that. At the same time, the pressure for more detailed planning, for better control, grows. I see a grim future in all this choice and technology.

The Bryan decision is still bugging me. I find the idea that a priori "logic and reason" should be preferred to actual empirical evidence difficult to take in the first place. But even a priori logic points in the opposite direction the Court took.

Suppose that the act of voting is a cost we engage in to get a government we want. Whether we live in Nanaimo or Bonavista, the chance that our individual vote is going to affect who becomes the local MP, let alone who constitutes the government is essentially zero. So on this assumption, no rational person would vote.

This argument leads to the expressive theory of voting. Instead of conceiving of voting as something we do in order to get a result, we vote to express our political identity (or perhaps as a civic duty). In economic terms, voting is consumption, not investment. It follows then that we would vote the same way regardless of who was going to win.

This argument may be wrong, since it is premised on people being instrumentally rational. Maybe they aren't. But I can't think of any way to reason about how people will react to information that is based neither on evidence of how they in fact do so or on an assumption of rationality. If Bastarache does, he should publish.

What with all the excitement of security certificates and election result publication bans, it is with a certain sense of relief that we turn to the Red Nine's latest on the limits of in rem jurisdiction in admiralty cases.

Phoenix Bulk is in the business of transporting cargo by ship. It says Kremikovtzi Trade contracted with it to move some coal from Vancouver to Bulgaria. But -- if Phoenix Bulk is to be believed -- instead of following through with this contract, Kremikovtzi arranged with the owners of the Swift Fortune to transport the coal on that ship instead.

The question is whether Pheonix Bulk can "arrest" the cargo in the Swift Fortune. This turns on whether the Federal Court as an admiralty court has in rem jurisdiction over the cargo, which in turn depends on whether it is the "subject" of the action.

Neither court really says whyParamount is wrong. Statutory interpretation cases can be resolved just from intuitions about what words "plainly" mean. But I think more satisfying reasoning is available here.

What do the parties agree to in a contract of "affreightment"? One thing the carrier gets is the security that if it isn't paid, it has possession of the cargo. This security means it can charge less than it would if it didn't have this way to reduce its risk.

Let's suppose the cargo is not delivered at all. What is the carrier deprived of? Most obviously, the carriage price. But it also loses the security possession of the cargo provides.

The Court in Paramount was dead right to say that not all property remotely connected with an admiralty case could be the "subject" of the action. But it ignored how central possession of the cargo is to what a carrier bargains for.

So it was good that Paramount was overruled. I'm not sure it would have killed the court to show its work a bit more though, so this is a pretty limited "thumbs up."

Thursday, March 15, 2007

For many years now, political junkies on Canada's west coast have faced an irritating choice on federal election nights: the smug visage of Peter Mansbridge or the partially-reanimated corpse of Lloyd Robertson telling us either who had already won or (with patronizing smile or barely detectable eyebrow movement respectively) that we would for once have an impact on who governs us as a result of divisions among our fellow citizens in more easterly time zones.

By law, we are not supposed to know which of these things are true, or which party will form the government, until our own polls close. The theory is that ignorance will boost the number of lotus eaters putting down their joints long enough to exercise their franchise. (Although actual evidence for this theory is, as we shall see, scarce.) Section 329 of the Canada Elections Act makes e-mailing the results in Cape Breton-Canso to a pal in Vancouver Kingsway is committing an offence punishable by imprisonment.

Today, the Supreme Court of Canada ruled 5-4 that the law is OK by the Charter of Rights. Bryan posted federal election results in Nova Scotia on his web page before the polls closed in the West. He was charged and convicted, and the Court has now upheld that conviction. They thereby revealed a number of alarming things about the protection of freedom of speech in this country.

In Canadian constitutional law, all analysis comes in at least two stages. It is never enough to know just that a right has been violated: the court also has to determine whether the violation is a reasonable one, saved under section 1 in accordance with the jargon.

Under Canadian freedom of expression doctrine, the first step is pretty much always a foregone conclusion. Any activity capable of conveying a meaning is taken to be expression and any government action that makes that activity a little more difficult counts as a "prima facie breach". The real issues are always addressed when figuring out whether the violation is reasonable. The Pithlord has no particular objection to this -- free speech absolutists either haven't thought very hard about their position or are total nutbars. The trouble in Bryan lies with what the majority is prepared to accept as a justification for infringing what they concede is the core of the freedom of expression guarantee -- talking before voting.

First, the Court tells us that governments can legitimately limit freedom of expression to obtain "informational equality" among voters. This is a concept Robert Mugabe would love, since it could justify any act of censorship. Anything anyone says, or writes, or posts obtains a limited audience, and therefore creates an informational imbalance between those who hear or read or download it and everyone else. It follows that all political expression creates informational inequality. According to Sitemeter, even Pith & Substance fails to reach the entire Canadian electorate. To the extent this post has informational content, you, dear reader, are now part of an informationally advantaged group. Shame on you, you informational kulak.

It is true that the movement of the Earth provides BC voters the opportunity of knowing how Nova Scotians have voted prior to voting themselves. But I fail to see even a cosmic injustice in this. If this knowledge does not affect how BCers vote, then it doesn't matter. And if it does, then it magnifies Nova Scotian power. It's win-win.

Second, it turns out that quantitative studies provide no evidence that the availability of eastern electoral results affects western voting. The trial court listened to expert evidence on this point and -- as trial courts are expected to do -- concluded that it undermined the government's rationale for the legislation. But Justice Bastarache has shown that this was precisely where the trial court went wrong -- evidence is no substitute for uninformed hunch. Or, in his deathless prose:

The contextual factors are essentially directed at determining to what extent the case before the court is a case where the evidence will rightly consist of “approximations and extrapolations” as opposed to more traditional forms of social science proof, and therefore to what extent arguments based on logic and reason will be accepted as a foundational part of the s. 1 case.

Bastarache uses the terms "logic" and "reason" -- both rather foundational to Western thought -- in precisely the opposite sense that they have traditionally been given. It appears that logic and reason depend not on the best analysis of the available evidence, but on uninformed public opinion:

This evidence includes the Lortie Report, which found that “Canadians feel very strongly about premature release of election results” (vol. 2, at p. 84), and the Decima Research/Carleton University Poll, which found that 70 percent of those surveyed believed in the principle of informational equality, suggesting that a failure to adhere to this principle would harm their view of the electoral system. Clearly this evidence is not conclusive, but the Attorney General is not required to demonstrate an “empirical connection” between the objective and the provision: Harper, at para. 104. Logic and reason, combined with the evidence that is available, establish that s. 329 is rationally connected to maintaining public confidence in the electoral system.

In other words, there is no reason to think that releasing the information actually reduces turnout, but 70% of Canadians tell one pollster that they think it might, so that is good enough.

The reductio writes itself. What kind of protection of expression depends on the expression being approved by more than 30% of the populace? How many Québécois in the 1950s thought it was a good idea to suppress communism and criticism of the Catholic Church? How many Americans like flag burning, or Maoist newspapers?

Finally, Bastarache says the suppression is "only for a few hours", so it is no big deal. Here, the Court shows an (unsurprising) lack of understanding of new media (or, as I prefer to refer to us, "loser obsessives with blogspot accounts"). The MSM can -- at least in theory -- restrict its broadcasting to permitted time zones. The Internet doesn't work that way. If this law is to be enforced, every election is going to require investigations of a whole slew of political bloggers. The RCMP will be poking into pseudonyms, IP addresses and all that other stuff I don't understand. It's going to be ugly.

And for what? There is absolutely no concrete benefit that the federal government was able to establish on the evidence. That's the nastiest implication of this case, by far. The state can suppress political speech without having to show a reason of any kind.

Exceptions like the older Mordecai Richler aside, it certainly seems to be generally true in Canada that its novelists are either conventional leftists, apolitical or old-style establishment Tories -- with the bulk probably conventional leftists. So the issues are why, and will this change?

One obvious explanation is a materialist one. Writers vote for left-wing parties for the same reason as muncipal workers -- because most of their income comes from the state.

Another explanation arises out of the peculiarities of the Canadian political scene. There has always been a tie between the novel and nationalism. In English Canada, nationalism is even more appealing to literary types because -- at least since Grant -- it is tied to the kind of lost cause elegiac sensibility Nugent suggests is an appealing background for literature.

On the other hand, the centre left is so hegemonic in Canada that one might think its pieties would make tempting targets. And it is a bit odd that the old rural Protestant Canada seems in all our fiction to be treated like an all-powerful force of oppression when it is fairly obviously a culture in decline (making it a tempting object for elegiac treatment, one would think).

Monday, March 12, 2007

It is a fact* that women do more domestic work in heterosexual couples than their menfolk. Matthew Yglesias argues -- rather dangerously -- that this is not just exploitation: much of the effect can be explained by male tolerance for living in filth.

The result here actually shows that there are two different things happening here. One is that men and women have different ex ante levels of cleanliness. Single women do 10 hours of housework, whereas single men only do seven. A perfectly equitable division of labor, should result in a couple doing a combined seventeen hours and then splitting it evenly -- 8.5 hours each.

That, however, doesn't happen. Instead, you see male shirking to the tune of 3.5 hours -- cutting the male second shift down to five hours a week, and boosting the woman's up to 12 hours. But then women put three more hours of housework in per week. The effect of those three additional hours is to raise the couples' cleanliness standard up to the 10 hours per week per person maintained by single women.

I continue to disagree with the implied solution of creating equality within domestic work norms that are an unholy marriage of 1)patriarchy, 2)the related assumption of one partner devoted full-time to domestic work, and 3)general cultural assumptions that unstructured leisure time is somehow immoral, and instead think that it makes more sense to try to achieve equality within a more rational allocation of priorities that doesn't take 50s-bourgeois standards of tedious domestic busywork as a given. An additional advantage of my idea is that I think gender equality will be much more viable if the total work is reduced.

I'd like to show some gender solidarity here, but I am afraid that I can't agree with the implicit normative premises either Matthew or Scott employs. If the position of our sex is to be vindicated at all, it must be on some other grounds.

I'll start with Scott's assertion that modal female norms of cleanliness are the product of patriarchal indoctrination. Now, the Pithlord is not in principle opposed to all arguments that depend on endogeneity of preferences or false consciousness. But I agree with Karl Popper and Jon Elster that such arguments require microfoundations. If the patriarchy acts, it acts through agents. And in my household, the only plausible agent of the patriarchy is me.

Now, in seven years of cohabitation/marriage, I can count the number of times I was the first to say, "Jeez, we'd better do something about the [vacuuming/ hamster cage/ bathroom." And even when I add the number of times my lovely wife said, "Let's leave that for now" I still get a number that children are expected to know if they want to graduate from kindergarten without being diagnosed with learning disabilities. On the other hand, if I add all the times that I have suggested that a lower standard might be appropriate to the complaints about our squalid living conditions from my life partner, I would get a number that would make Roger Penrose nervous.

So if average cleanliness (which we have occasionally achieved) is a patriarchal norm, it is being enforced by the feminist grad student and not the cranky Red Tory male lawyer.

Personally, I prefer a pop evolutionary psychology explanation to a social constructionist one. I think there's general agreement that in the Environment of Evolutionary Adaptation, women spent more time in high density settlements (at least by the standards of the day) and with poopy babies than did their more nomadic menfolk. Ceteis paribus, infectious disease was a bigger problem for women than for men. It is a quick theoretical line to the funky smell of the contemporary frathouse.

The best argument for a social constructionist approach is that the capacity of women of Scott and my generation (let alone Yglesias's) would cause their grandmothers heart attacks. (The same could be said of our grandfathers if they knew how bad we males are at fixing things.) No one keeps house like they used to. Two points. First, behaviour isn't just about preference -- its also about costs, including opportunity costs. The opportunity cost of time for women in our generation and social class is quite a bit higher than it was fifty years ago.

To the extent not only cost but preference has changed, I would say that this can be consistent with sociobiological theory. Our minds tend to define things relatively, not absolutely. It could always be the case that the average women would prefer a cleaner world, while learning to accept that it isn't going to be much cleaner than it is.

Further, and in any event, even if Scott is right that female preference for cleaner living conditions is the result of socialization by a sexist society, I don't think this has the normative implication that a greater degree of slovenliness than current heterosexual couples achieve would be more rational. On a purely instrumental view of reason -- which eschews evaluation of ends as opposed to cost-effectiveness of means -- each gender's preference is as rational as the other. As far as justice is concerned, preferences that derive from socialization are entitled to as much respect as those that come from biology. On a more pre-modern view of reason as encompassing pursuit of the Beautiful, the True and the Good, the estrogen-laden position seems to win on the first count.

It's true that a just solution might involve bargaining to a less clean solution than the female partner would prefer. But the disutility that creates for her should count in the balance just as much as the pain of extra work or lost leisure time.

Yglesias makes a still-more-subtle error. He tacitly takes it as just if the relationship leaves the woman no worse off than she would have been without it. If it would be OK with Pareto, it's OK with Matt. The trouble is he doesn't take into acount relational contract theory. Paretian optimality works as a criterion of justice for a one-off transaction: if both parties are better off and no one else is worse off, then we have as much justice as we're going to get in this vale of tears. But as Oliver Williamson or Dr. Phil could tell you, a relational contract involves investment in relationship-specific human capital. The mere fact that a party to such a contract would be better off sticking with it then exiting doesn't show that the contract is fair. So even if a woman would do about the same amount of housework if she were single, there is still the possibility of injustice if the male partner takes most of the economic surplus created by the relationship, even if there is sufficient surplus left over such that exit is not rational.

So just doing less housework or comparing women in couples to single women won't solve the problem of justice. But it could still be the case that at least some relationships in which women do more housework are just. Let us grant -- as I think Yglesias and Lemieux would in other contexts -- that a division of labour is not in itself unjust. The real issue is not whether each party gets the same specific benefits and burdens out of a relational contract (indeed, if that were the case, it is unlikely that the relational contract would exist in the first place), but that the sums of benefits and burdens be approximately equal. A traditional division of labour -- with the man in the coal mine and the woman doing domestic drudgery -- might fit the bill. The problem is the unequal distribution of unpaid labour when there are similar expectations of paid labour. (Even if there is fairness in the relationship, there may be unfairness in relationship breakdown if -- as is often the case -- the woman has paid for domestic work and childrearing by lost ability to earn income).

The trouble is distinguishing between division-of-labour as increasing the overall wellbeing of both parties and acting as a rationale for male exploitation. I don't have a solution to this, but I'm pretty sure putting women in charge of quality control is welfare-enhancing.

*The empirical facts in this post, such as they are, are British, but I'm sure that a bit of googling would show the same in Canada or the US. But I have to change the baby.

Thursday, March 08, 2007

There is a fundamental contradiction embedded in Canadian criminal law. Even before the Charter, a confession was supposed to be excluded from evidence unless the Crown could prove it was voluntary. And, at least in theory, a statement was only voluntary if it was made without any threat or inducement.

However, the dirty truth is that the whole criminal justice system is premised on getting admissions of guilt in return for stuff. The vast majority of charges never go to trial, and the only reason is because a guilty verdict after trial is worse news than a plea. If it weren't for this theoretically illegitimate expected risk/reward structure, the system would collapse.

So criminal law doctrine prohibits precisely what the crime control system is structured around.

In R. v. Spencer, the Supreme Court had to deal with this contradiction in the context of a confession provided by the accused with the hope of getting someone else out of trouble. Spencer and (perhaps) his lady friend were allegedly involved in a number of robberies on the West Coast. Spencer said he would confess if his inamorata was spared. The investigating officer promised nothing. Spencer confessed anyway. The trial judge let the confession in, resulting in a conviction. This was overturned on intermediate appeal.

The majority comes to the sensible conclusion that the confession should be allowed. I can't say they improve the doctrinal muddle, though.

Tuesday, March 06, 2007

Partisans of both left and right have a tendency to complain that their opponents have "no new ideas. " (For an example from the right, look here. ) Editorials advise parties out of office to develop these new ideas, and political consultants promise to help in exchange for a modest fee.

But why are new ideas desirable in politics? There's nothing new about free markets, the protection of private property or traditional morality, and not much new about broad social insurance schemes, risk regulation, social liberalism, or aggregate demand management to ameliorate the inequalities caused by markets. Some combination of these things could easily characterize any position one would like to take on the domestic political spectrum. Combine like the median voter, and you have a winning politial coalition; combine like no one else, and you can be a contrarian social critic. No need for new ideas.

There might be some room for ingenuity in the detailed technocratic design, but that's never what the proponents of "new ideas" have in mind. In the end, we just get something vacuous like "the Third Way" or the "politics of meaning".

Genuinely new and non-vacuous ideas tend to be bad ideas.

For example, the Ackermans' proposal to give every high school graduate a "capital grant" of $80,000 for existing is a new idea, or at least was when they proposed it about ten years ago as a centrepiece for a new progressive agenda. The trouble is -- as anyone with an ounce of common sense could see -- it is a really, really bad idea. The Pithlord was a cautious teenager, as these things go, and yet it would have been a bad idea to give his pimply former self 80 grand. The Ackermans -- who are legalists -- could have talked to any estates and trusts lawyer to find out that what they were proposing is precisely what their sub-profession exists to avoid.

As it happens, in Canada, we have run this experiment a bit on resource-rich reserves. The results haven't been good.

And yet the very smart people at Crooked Timber manage to take this idea very, very seriously. Conservative anti-illectualism has its limits (certainly tested and exceeded with the Bush administration), but the whole thing does make me appreciate William F. Buckley's preference for being governed by the first 100 names in the Boston phone book than by the Harvard faculty.

I recall another "new idea" in 2003, involving junking international law and coercively promoting democracy everywhere. I wonder what happened to that.

Politicians generally are -- and should be -- extorverts in the seventh or eighth decile of intelligence. They should be devoting these talents to understanding and explaining old ideas, not thinking up new ones.

Update: Akrasia, despite a weakness for liberal political theory, applies the very conservative "better to be derivative and good than original and crap" principle to music.

As a Genertation Xer and the father of a nine-year-old girl, I can't say I'm familiar with any of the second-generation bands Akrasia cites. I haven't experienced new music on my own motion for a decade. What I do get exposure to in the family vehicle -- mostly Justin Timberlake and Fergie -- is simultaneously derivative andcrap. Oh well, every generation has its own disease.

Monday, March 05, 2007

When I wrote about Hislop, I failed to address the obvious argument for a retroactive remedy. If it violates the constitutional rights of same-sex couples to deny them survivorship pensions now, then presumably it violated them as soon as those rights existed (in Canada's case, in 1985). So why shouldn't people whose rights were violated get relief? Isn't it just unfair? Ubi jus ibi remedium. And if that costs a bit, so what? Fiat justitia ruat caelum!

One critical factor in this is that people are forced to make CPP contributions. It is not like a private plan that can be opted out of or at least can factor into an individual's employment choices. Gay people in 1985 simply had to make CPP contributions and they had no way of ensuring that the pension could be passed on to their partner.

If this is wrong today, which I think it is, then why wasn't it also a problem back in 1985? The people who lost out because of that are still alive in many cases and should be compensated because they had no alternatives.

Since my preferred rule would be to give the legislature a lot of leeway in relation to the transitional issues involved in implementing a constitutional decision, I have to answer this point. (So does the Court, which took the view that Parliament deserved no deference, but they should be able to determine the transitional issues on the basis of unworkable doctrine.)

The Haligonian's argument is seductive. Gays and lesbians contributed to CPP, so why shouldn't they get their money back?

Unfortunately, it is inherent in social insurance (and even private defined benefit or insurance schemes) that there is no direct relation between contribution and what you get back. If you want this, you end up with a Bush-style defined contribution scheme and -- ultimately -- libertarianism. CPP developed survivorship pensions because of modal heterosexual divisions of paid and unpaid work -- to protect women. Overall, it is not clear that same sex couples lost out financially for being treated as two individuals by the tax and transfer system. The reason for addressing the differential legal treatment between same sex and heterosexual couples was not that same-sex couples were disadvantaged financially. They weren't. The reason was that there was an obvious social message implied by the differential treatment, one that goes back to Judeo-Christian and perhaps naturally evolved attitudes that caused and cause grief for gays and lesbians.

So a retroactive remedy might well be unfair unless a lot of interconnected things were undone simulatenously. And doing that in regard to past transactions could cause a lot of unforseen hardship.

Presumably, these considerations were why the courts tended to suspend their declarations of invalidity when the original victories were won for same-sex couples.

There are other implications of prospective remedies:

--Precisely because they are less disruptive to society, they might encourage a more activist approach by the courts. On a traditional view of remedies, the constitution always said what it says now, and so governments ought to be able to anticipate an unfavourable ruling. Legislation is prospective because it is supposed to be about change and "progress". If judicial remedies are prospective, judicial thinking may become more legislative. I think that's what Andy was trying to get at here.

So from a judicial point-of-view, prospective remedies might mean more change through constitutional litigation.

--On the other hand, retroactive remedies create more incentives for clients and lawyers to engage in constitutional litigation. Kingstreet is going to mean a lot more constitutional tax cases. If Hislop had been an uncomplicated victory for the plaintiffs, then their lawyers would have become rich. And rich lawyers get imitated.

Value pluralism is a brute fact that any serious ethical theory has to deal with somehow, and so far as I can tell there are only three ways to do so:

1. Subjective values are are all there is, and there is no objective fact of the matter about what’s good or bad.

2. There really is only one true Good, and when people pursue anything else it’s simply due to error.

3. There are lots of things that are good and bad, and these things aren’t reducible to a single underlying variable.

Position (1) is usually taken by libertarians of an economistic bent, but is unsatisfactory when we consider meddlesome preferences because it doesn’t allow us any basis on which to discuss and evaluate states of affairs: I want this and you want that, and where these conflict we have to hash it out either by votes or violence. Position (2) is the one taken by members of various One Big Thing schools of thought, like utilitarianism and Objectivism, but runs into epistemological difficulties.

So far, all I can add is amen and hallelujah (although I'd say there are better arguments against Position 1 and maybe Position 2). But then we get this:

Position (3) appears to be Will [Wilkinson]’s, and strongly informs his contractarian reasoning: if there’s no consensus on value, the best we can do is to build a neutral framework in which people’s pursuit of multifarious values can be accomodated to the maximum extent possible.

If this is a fair statement of what WIlkinson is arguing, the fallacy is obvious. It starts by saying there is no summum bonum, no meta-value, and then it turns around and makes consent the meta-value.

Once you accept value pluralism, then you have to accept that any argument about how we should order our affairs has to be specific to the situation we find ourselves in. You might as well abandon hypothetical consent, and accept that actual consent is usually going to have to give way to something else. In fact, you ought to abandon "political philosophy" in the sense of designing trans-historical principles to evaluate societies by.

(To be fair, McIntosh says he is going to distance himself from this position later.)

Thursday, March 01, 2007

When a court decides that an ordinary law is contrary to the Constitution, when should this determination come into effect?

There are basically three options:

1. On the basis that the constitution was always the higher law, and therefore the statute was always unauthorized, the decision could be retroactive -- everyone should be treated as if it had never been enacted.

2. On the basis that constitutional jurisprudence is really a different form of legislation, and legislation should usually be prospective (so as not to overturn reasonable reliance and other rule-of-law values), then the decision could be prospective. Past transactions would be left undisturbed, and the new constitutional rule would take effect after the decision.

3. The courts could recognize that the legislatures are better able to make this transitional determination, and give them room to decide in most cases.

The Supreme Court of Canada has not been good at coming up with a coherent answer as to which option should be chosen. In theory, #1 is the default rule for constitutional remedies. However, most cases with bigger social implications have, in fact, been given a suspended declaration of invalidity -- which doesn't take effect until sometime after the decision, and which would seemingly be inconsistent with retroactivity.

The Pithlord will declare a preference for Option #3. Let the legislatures decide how they want to deal with the temporal issues of unconstitutionality (within reason, of course). Unfortunately, here we come up against the attitude of judicial supremacy.

Option #3 does require a default rule in the event that the legislatures don't act. Here, I would say that the best rule is retroactivity subject to ordinary limitation statutes.

2007 has seen two cases on the issue of the temporal effect of unconstitutionality. I hate to say it, but all the Court seems to have accomplished is to compound the confusion.

In Kingstreet, the issue was whether a provincial tax found to be "indirect" (and therefore unconstitutional) should be returned. In Canadian constitutional law, only the federal government can levy indirect taxes, which are defined as those for which the incidence falls on somebody other than the legal payor. (A difficulty with this test is that modern economic thought tells us that this applies to all taxes. Not surprisingly, the case law is therefore a bit confused.) Back in the seventies, the Court held that provincial laws preventing civil suits for unconstitutional taxes were unconstitutional. In the eighties, noting the potential fiscal difficulties, it then created a common law rule that unconstitutional taxes could not be recovered. In 2007, it now abolished both rules, leaving only the limitation period as a limit on recovery.

So far, this might be seen as an implementation of the Pithlord's preferred option. The retroactive effect of a declaration that a tax is unconsitutional will be up to the legislature, with a default rule of retroactivity.

Hislop involved a class action by survivors of same-sex couples claiming survivorship benefits under the Canada Pension Plan. The background is that the Supreme Court of Canada narrowly upheld different treatment of same-sex and heterosexual common law couples in federal pension plans in 1995. Then, in 1999, another Court decision convinced governments that they were going to lose if they continued to distinguish between heterosexual and same-sex couples. The federal government enacted specific transition provisions to determine both the earliest date of death for eligibility, and when the payments would start.

In Hislop, the Court gave with one hand and took away with the other. The Court struck down the legislated transitional provisions, but simultaneously decided that its prior ruling would not be retroactive. The general discussion of remedy is quite confused -- the general rule is supposedly retroactivity of remedy, but the prospectivity exception swallows it. There is some quite open discussion of the law-making function of judges in the Charter era:

In substance, the position of the appellants is predicated on the traditional – often called Blackstonian – view that judges never make law, but merely discover it. In this perspective, the courts are said to apply the law as it really was or has been rediscovered. As a consequence of the declaration of nullity, the appellants claim that they are entitled to the full benefits of the law, in conformity with an understanding of the Constitution, which is deemed to have never changed.

When the Court is declaring the law as it has existed, then the Blackstonian approach is appropriate and retroactive relief should be granted. On the other hand, when a court is developing new law within the broad confines of the Constitution, it may be appropriate to limit the retroactive effect of its judgment.

This is highly confused. Any court ruling creates new law in the sense that it can be used as an authoritative statement of positive law in the future. And courts may apply old constitutional principles to new situations. But the principles themselves are not supposed to change.

In any event, and however you try to address the counter-majoritiarian difficulty inherent in judicial review, the distinction between "declaring the law as it has existed" and "developing new law" will be impossible to draw. And making remedies -- which, after all, are the only things litigants care about -- depend on such philosophical considerations is madness.

Obviously, we are going to see a lot more on this as the lower courts try to figure out what they're supposed to do.